Legal Aspects of Reproductive Rights

Abortion and in the United States Law — now and through history

Note: this article was written prior to the June 2022 decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade. An addendum addressing and critiquing the very flawed, faulty Dobbs decision has been inserted following the discussion of Roe.

From January 1973 to June 2022, the supreme judicial standard governing abortion in the United States was the case of Roe v. Wade (410 U.S. 113 (1973).

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=410&page=113

Many times, opposition to Roe v. Wade has been expressed as opposition to a “liberal” court “legislating from the bench” to overturn traditional values. Those taking this view demonstrate a lack of familiarity with this case or with the “tradition” of reproductive law and history in the United States.

The decision in Roe v. Wade was not a close decision. It was decided 7-2, with the decision written by Harry Blackmun, a Republican appointee elevated to the Supreme Court by President Richard M. Nixon. The decision was based on respect for tradition, respect for personal liberty and free choice, and interpreting the Bill of Rights according to the intent of the Founders.

Here are the historical facts about abortion in United States history: at the time this nation was founded, abortion up until the perception of fetal movement (“quickening”), which usually occurs near the beginning of the second trimester, was fully legal in all thirteen colonies.

Under governing English Common Law, there were NO LAWS AGAINST ABORTION ANYWHERE IN THE 13 ORIGINAL COLONIES/STATES, and this continues after the 13 Colonies became the 13 States. Further, Common Law also mandated that, even in the case of illegal abortions (late term), the woman herself was immune from prosecution.

This point is explicitly discussed in Roe v. Wade at great length, in Section VI.3-5 of the decision, to demonstrate that when the Founders referred to being secure in one’s home or person, their mindset would include the right of a woman to be safe from intrusive government oppression in dictating control of the most private part of her body. The Court took the standard of having imputed a “penumbra” right of privacy in the earlier case (regarding contraceptive rights) of Griswold v. Connecticut (381 U.S. 479 (1965)), and came right out and said there is a direct, absolute right of privacy expressly stated in the Constitution, whether or not the actual word “privacy” is there, because it is included within the scope of the definitions of the words that ARE there, and the Ninth Amendment guarantees that unenumerated, unspecified personal liberty rights are reserved to the people. Because abortion prior to “quickening” (the second trimester) was legal throughout the nascent United States, it would clearly be within the understanding of unspecified privacy and personal liberty rights reserved to the people under the Ninth Amendment.

The first state to actually pass a law outlawing abortion was Connecticut, in 1821 (32 years after passage of the Bill of Rights), followed by New York (1828), with a law that was subsequently modeled by many other states. By the end of the 19th century, abortion had been outlawed in all states.

These laws were legal at the time, because the first ten amendments, the Bill of Rights, were limitations only on the federal government, not the states. It was not until the passage of the Fourteenth Amendment, which includes the Incorporation Doctrine that applies the rights of the first amendments to the states, that such limitations also would apply to the states. The late justice Ruth Bader Ginsburg also argued that, since women bear the sole bodily burden of pregnancy, and are the ones who have their life plans and careers disrupted by unwanted pregnancy, to not allow the right to determine whether or not to remain pregnant also violates the “equal protection” clause of the Fourteenth Amendment, since there is no case in which a man must physically use his body to keep another human being alive. For example, a man cannot be forced to donate blood or marrow to save another person and cannot even have their organs donated without their written consent prior to death. Forcing women to use their bodies to keep fetal tissue alive puts women in a place below that of a corpse.

By the mid 1960’s, opinions had begun to change in the United States, and some states began to restore the legal status that had existed in the time of the Founders. Even before Roe, 16 states had already legalized abortion, including the large population centers of New York and California (signed into law by then-governor Ronald Reagan).

2022 Addendum in response to Supreme Court Decision Dobbs v Jackson Women’s Health Organization overturning Roe v Wade:

Justice Samuel Alito, in his opinion in Dobbs v Jackson Women’s Health Organization, whined that Roe v Wade was poorly reasoned. The opposite is true. While Ruth Bader Ginsburg argued that there should have also placed more emphasis on the equal protection clause of the 14th Amendment, since there is no equivalent burden on men to use their bodies to keep another person alive (and I agree with her), Alito’s argument that Roe distorted the intent of the founders or the history of abortion in English common law, the thirteen original colonies and all states for the first 45 years of our existence, is pure nonsense and truly sloppy jurisprudence. He could not even cite his own references accurately.

The “originalists” can’t even get their originalism right. Privacy was baked into the fourth, fifth and fourteenth amendments.

As noted earlier, THE RIGHT TO ABORTION UP TO FIFTEEN WEEKS was part of English common law going back hundreds of years, and the law in all thirteen colonies and ALL THIRTEEN ORIGINAL STATES and all additional states until Connecticut became the first state to outlaw it in 1821, 45 years after the Declaration and 32 years after the Constitution was written. IT WAS WELL UNDERSTOOD as an established deeply-rooted in long-standing tradition, and absolutely well-within the understanding of unenumerated rights understood by the founders as being usual, normal and well-established traditions.

This was the basis of the Roe decision, and that history is explained at length in the text of Roe.

Alito cites two British judges from the 1600’s, who wrote and enforced laws imposing capital punishment on women accused of witchcraft, and rejected arguments against marital rape, and cites THEM as his sources because they called abortion a heinous crime.

But Alito can’t even get that right! Even the text he cites from the “witch” killers — quoted right there in his own opinion — refers to the “quick child” or “after quickening” — the woman’s sensation of fetal movement, which occurs after the fifteenth week, long after more than 90% of abortions are performed. Then and only then do even the “witch” killers call it a felony.

On page 17 of Alito’s sloppy opinion, he cites Sir Matthew Hale, a 17th century British jurist who also in his career sentenced two women to death for witchcraft and, in the same treatise cited, also states that husbands have a legal right to rape their wives. Also cited on the same page is Sir Edward Coke, also a 17th century jurist, the one who wrote the laws against witchcraft that would impose the death penalty. Yet both of those cited, while they did refer to abortion as a great “crime,” even these two who sent women accused of witchcraft to their deaths only applied that standard AFTER THE FIRST TRIMESTER, the point at which a woman can feel fetal movement, at the point known as “quickening” or when the fetus becomes the “quick child,” which occurs at about the 15th week, well into the second trimester. As was already noted, Alito even quotes those words from his archaic sources, but apparently does not understand the meaning of “quickening” or the “quick child.” As with the rest of English common law, and the law in the 13 colonies and all 13 original states, abortion was completely legal well into the second trimester.

Is Alito suggesting that we only have “freedom” and “liberty” to engage in activities if they are specifically listed in the Constitution?

The right to travel across state lines is not in the Constitution.

Corporations or capitalism are not in the Constitution.

The right to abortion, which was legal in all original states through the first four months, would clearly be included as long-established, well-known traditions within the liberty rights understood by the founders to be reserved to the people via the Ninth and Fourteenth Amendments as spelled out in Roe.

The early laws outlawing abortion, starting with Connecticut in 1821 (almost 50 years after independence), were Constitutional because, originally, the first ten amendments, the Bill of Rights, were limitations only on the federal government, not the states, until the Incorporation Doctrine of the Fourteenth Amendment in 1868 applied the rights of citizens under the first ten amendments to the states as well.

And it should be a serious warning to read the concurring opinion by Clarence Thomas, rejecting even the right of individuals to make decisions about contraception, private behavior behind closed doors and the right of marriage equality without regard to gender.

The full text of the Dobbs decision, in its final form as ruled on June 24, 2022 (including the opinion of the court, as well as concurring and dissenting opinions), can be found at:

https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

An excellent article by a lawyer (and former clerk to Sonia Sotomayor) in the May 5 Los Angeles Times on the legal history of abortion that Alito’s sloppy decision got wrong (the article was written in response to the original release of the draft opinion, but also applies to the final ruling as issued which followed the draft version very closely):

https://www.latimes.com/opinion/story/2022-05-05/abortion-draft-opinion-14th-amendment-american-history-quickening

Ever since Roe was decided in 1973, at which time sixteen states already had legalized abortion, anti-choice extremists had been calling for Roe to be overturned and the issue to be returned to a state-by-state matter. But now that Roe his been overturned, many conservatives in the House and Senate are calling for a national ban on abortions. Thus we see that the issue is no longer a matter of who goes to our state legislators, but a matter that will ultimately be decided nationally. Now, every election for every seat in the House and Senate is a vote for or against the right of women to make their own medical decisions about the most private aspects of their personal lives. Freedom and liberty are on the line. Conservatives talk about “freedom” and “liberty,” but they are the ones who seek to have our private lives micromanaged by Big Intrusive Government — they are the ones who believe that it should be government, not individuals, to make the most intimate decisions about our personal lives, including private relationships (dictate who you can or can’t marry), private medical choices (reproductive choices such as abortion or contraception, medical marijuana, end of life choices, stem cell therapies, gender-identity care), what books we or our children can have access to, or try to force PRIVATE religion into PUBLIC policy and religious rituals into public meetings or subsidize it with special tax advantages (socialized religion).

 

Of course, if the blastocyst / zygote / embryo / fetus is not a human person, or there is no validity to assertions of any moral concern, then there is no basis at all on which to claim that it should be unlawful for a woman to terminate a pregnancy that she does not wish to continue.

Bodily Sovereignty

Personal choices about behavior should never be legislated, unless and until they infringe the equal rights of other persons. The old saying goes, “My right to swing my fist ends where your nose begins.” Persons have the right to make any choices they want about their behavior, including moral choices, up to the point that someone else’s rights come into play. A person has the right to wear whatever they want, choose the color of their house, or even choose sexual behavior (alone or with others who have the capacity to consent to free and voluntary participation) and, however else someone else may disapprove of their taste or moral beliefs, they have the right to make those choices as long as they do not infringe the other person’s right to the moral or aesthetic choices THEY believe to be appropriate.

Rights of the Woman vs. Rights of Embryo

The problem in the case of abortion is that the disagreement about abortion is partially about differing moral beliefs, but also a disagreement about whose rights are being infringed. Those opposed to abortion claim that they are protecting the rights of the zygote/embryo/fetus from the infringement of having its life terminated.

But even if the zygote/embryo/fetus were a fully-endowed human person, with all the rights of personhood, all the way back to the moment of fertilization, the crux of the LEGAL question becomes, “Who has the right to control the body: the zygote/embryo/fetus or the woman?”

Is Abortion Murder?

Killing for lawful execution is not murder.

Killing as part of war is not murder.

Killing in self defense is not murder.

Killing that is not against the law is not murder.

Killing of something that is NOT A PERSON is not murder.

Killing an insect is not murder.

Killing a bacteria is not murder.

Killing a HUMAN LIFE that is an unfertilized egg or sperm is not murder.

The definition of “murder” (as distinguished form mere “killing”) has comprised the following three elements throughout time, including the time of the Hebrew lawgivers and other contemporary civilizations:

a) Intent — killing of a person is deliberate rather than accidental

b) Malice or wantonness (i.e., not mere for defensive reasons or reasons of domestic or international law and order). Many would argue that the choice to terminate an unwanted pregnancy is self-defense of the most private part of a woman’s body.

c) Killing of a PERSON (not virus, bacteria, insect, animal or human tissue that is not a PERSON)

A woman’s intentional choice to terminate a pregnancy in the interest of her bodily sovereignty at most incorporates only the first of those elements; and, if the tissue removed is not even a human person or no moral issue is involved (see below), then even that doesn’t apply.

Meat is Murder?

Vegetarians could absolutely make a stronger case that “meat is murder” than that “abortion is murder.” Meat requires the killing of a sentient, autonomous animal that is NOT occupying the most private part of a human’s body, and which is wholly unnecessary since humans can get all needed nutrients from plant sources such as fruits, nuts and vegetables that produce food without killing a sentient creature and, in most cases, not even killing the plant! In contrast, artery-clogging animal fat is wholly unnecessary to a balanced, healthy diet.

Parental consent

Regarding parental notification: A girl who is old enough to be pregnant is old enough to make certain decisions that affect the rest of HER life and which SHE more than anyone else will bear consequences for the rest of her life.

I have never seen a “parental notification” proposal that includes a requirement that the parents who make a decision opposite what the girl wants are forced to assume lifetime liability for responsibility and support of the child; and how do the anti-choice conservatives feel about a situation where the parents think an abortion would be the best way to handle a problem situation, but a girl wants to carry to term?

We are not talking about headaches and aspirin here, but life-changing consequences.  She may not be old enough to make all adult decisions, or to consent to legal adult choices or even adult relationships, but if she is pregnant, whether she aborts, carries or gives the child up for adoption, SHE will be the one who endures the consequences for the rest of her life.

That is true whether she was forcibly raped, the victim of incest or “thought” she was in love and was trying to act like the adult that she isn’t.

In any case, the examples of incest and child abuse are, alone, valid reasons why notification laws are not workable. Almost all girls with a problem situation will turn first to their parents for help.  If a girl can’t go to her parents with this kind of problem, then she should not have to.

And the alternative is … what? A scared teenaged girl being forced to go to a judge? Give me a break! The whole point is to set up one more roadblock to make abortion harder. Newsflash! One of the key reasons for making abortion LEGAL is so she doesn’t have to have a “do it yourself” or back-alley job. She IS going to be talking to adult professionals, even in the extremely rare instances when she can’t go to her parents.

Look at the reality.

This issue is not about parental control; if she can’t go to her parents with this kind of problem at this age, they have already lost control. This is about strangers forcibly stopping girls from having abortions at all.

BOOK AVAILABLE:

My book Who Gets to Choose? (ISBN 9780944363201), from which these WordPress pages have been excerpted, and which includes the material from all the pages on this site plus additional material not in these web articles, has now been expanded, edited and published, and is available, and can be ordered in in a paperback print edition from Amazon.com and Barnes & Noble.com, as well as other outlets. The book was written and published prior to the Dobbs decision overturning Roe v Wade, and does not include the addendum recently added to this page.

Order from:

Amazon.com (in paperback print edition):
http://www.amazon.com/Who-Gets-Choose-T-Barans/dp/0944363202/

Barnes and Noble.com (in paperback print edition):
http://www.barnesandnoble.com/w/who-gets-to-choose-t-f-barans/1122746414

And “like” us on Facebook:
http://www.facebook.com/Who-Gets-to-Choose-1646180752291809/

NOTE ON COMMENTS: Comments are welcome, both those in agreement with my views and those representing differing views. Comments are subject to moderation and approval (and note that I review each comment myself, and I am not on the computer 24-hours a day, so there is usually a time lag between submission and possible approval). Brief, concise, specific comments are easiest to approve. Lengthy, rambling comments, or those that rehash points already made, clutter the thread and reduce both readability and the likelihood of approval. Inflammatory hate speech (“Abortion is murder!”) or personal insults will not be approved (unless someday I decide to post a “best of” collection of the hate speech stuff.

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Articles on this Site:

Moral Aspects of Reproductive Choice

When does HUMAN LIFE become a HUMAN PERSON?
Hint: HUMAN LIFE does NOT begin at “conception” (fertilization).
Life begins BEFORE fertilization; both the egg and sperm were alive and human (i.e., human life) long before that point.
The real issue is: what qualities of human personhood are necessary to have developed in order for that “life” to develop into a human “person.”
https://emerald7tfb.wordpress.com/2011/05/22/moral-issues-life-vs-personhood/

Legal and Legislative History and Issues in Reproductive Rights [this page]

Roe v. Wade was decided 7-2 — not even close — and written by Harry Blackmun, a REPUBLICAN appointee of Richard Nixon, citing personal liberty issues and the “intent of the Founders” since abortion had been legal in all 13 original states for almost 50 years, until Connecticut became the first to outlaw it in 1821.
https://emerald7tfb.wordpress.com/2011/05/22/legal-aspects-of-reproductive-rights/

Judeo-Christian Religious and Scriptural Aspects of Reproductive Rights

Even though we are a secular nation with separation of state and church/temple/mosque, for those who claim (without basis) that the Christian Bible opposes abortion, the irony is that THE BIBLE IS 100% PRO CHOICE (well, at least for the husbands, if not the wives):
https://emerald7tfb.wordpress.com/2011/05/22/abortion-and-judeo-christian-religion/

Additional Issues in Reproductive Choice

Turning the tables on the typical conservative myths about late-Term Abortion, Parental Consent, Abortion in cases of Rape, and more.
https://emerald7tfb.wordpress.com/2011/05/22/additional-issues-in-reproductive-freedom/

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3 responses to this post.

  1. Roe vs Wade was all about the privacy of a woman and her physician.

    Reply

    • Certainly the issue of the privacy of a woman (the physician is only a professional advisor) was a key issue in Roe v. Wade, as I note in very specific detail in the article, with references, but it is not the role of the courts to enforce or reject legislation based on the desirability of policy; that is the job of legislators. Remembering that Roe was not a close decision — it was decided 7-2 with five Republicans (who today would be more libertarian) voting for it, with the decision written by Harry Blackmun, a “strict constructionist” Nixon appointee.

      Privacy was certainly a moral impetus, but the judges needed a Constitutional basis for their decision. As to privacy, the case notes that privacy rights are fundamental and inherent in the 3rd, 4th, 5th and 14th Amendments. And in understanding the “strict constructionist” interpretation of how the Founders understood privacy, the decision explicitly notes in a detailed examination of the history of abortion in the United States that, at the time of the Founders, abortion was legal in all 13 original colonies and states, and would remain so for the next 45 years until Connecticut became the first state to outlaw it. This is a little factoid that most Americans are not aware of today, but is specifically discussed in the decision.

      Thus, the judges ruled, abortion in not only a matter of privacy today, but also in the eyes — and original intent — of the Founders who wrote the Constitution.

      Reply

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